C-266/96

1 — The vessels are thus modern car-ferries designed to permit vehicles to be driven directly on at the start of the voyage 2. Corsica Ferries France SA (hereinafter and off at the end of it 2 — Both the charterer, Tourship Ltd and Corsica Ferries are 'Corsica Ferries' or 'the plaintiff') is a French controlled by Tourship SA, a company established in Luxembourg. 3 — They will hereinafter be collectively described, for conve- nience, as 'the mooring groups'. When separate references are necessary, they will De described, respectively, as the * Original language: English. 'Genoan mooring group' and 'the La Spezia mooring group'.

I - 3952

CORSICA FERRIES FRANCE v GRUPPO ANTICHI ORMEGGIATORI DEL PORTO DI GENOVA AND OTHERS

Community law, it made payment with the 5. The national court considered the follow­ reservation that it did not accept the legality ing matters to be settled: of the charge and might later seek its recov­ ery.

(a) pursuant to Council Regulation (EEC) No 4055/86 of 22 December 1986 apply­ ing the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries, 4 as inter­ 5 preted by the Court in Corsica Ferries, the registration of, or the flag flown by, vessels operated by the transport under­ taking is not relevant;

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OPINION OF MR FENNELLY — CASE C-266/96

(d) a Member State is in breach of the pro­ those ports are 'areas which constitute a sub­ hibitions laid down by the Community stantial part of the common market'. competition rules where an undertaking is induced, merely by exercising the exclusive rights conferred on it, to abuse its dominant position, or where those rights are liable to lead to a situation in which the undertaking is induced to 8 commit abuses of that kind;

B — The judgment of the national court

(e) under Community law the Member States are liable for the harm caused to individuals as a result of infringements of 9 Community law attributable to them. (i) The national legislative context

I - 3954

CORSICA FERRIES FRANCE v GRUPPO ANTICHI ORMEGGIATORI DEL PORTO DI GENOVA AND OTHERS

Shipping Code, hereinafter 'the national the mooring and unmooring of vessels. regulation'). According to the national court: Although Article 13(1) of Order No 2 of 1 March 1972 of the President of the CAP provides that the 'use of the services of mooring operatives for the mooring and unmooring of vessels is optional', Article 13(2) nevertheless provides that 'where a vessel does not request the services 'That Regulation, which is an administrative of mooring operatives, mooring operations measure, indicates the technical qualifications must be carried out solely by the crew of the prescribed for operatives engaged in mooring 13 vessel'. Thus, according to the national activities and entered on the prescribed reg­ court, the use of the services of the Genoan isters, the powers of the harbourmaster for mooring group is rendered de facto compul­ regulation of the service and the arrange­ sory. In contrast, as regards the Port of La ments for provision of the service.' Spezia, it points out that, under Article 2 of Decree No 20 of 16 July 1968 of the Capo del Compartimento Marittimo di La Spezia (Head of the Maritime District of La Spezia), recourse to the services of the La Spezia mooring group is compulsory for vessels 14 Taking the view that no legal provision or exceeding a gross tonnage of 500. regulation makes the mooring service com­ pulsory, the national court states that 'the tariffs provided for in Article 212 of the Regulation are laid down by the Head of the Maritime District', 'and then by the Admin­ 12 istrative Authority'.

(ii) The questions referred

10. Having regard to the nature of the exclu­ sive rights enjoyed by the mooring groups, 2. Does Council Regulation (EEC) the compulsory nature of the services they No 4055/86 of 22 December 1986 in con­ provide and the basis on which their tariffs junction with Article 59 of the Treaty pre­ are drawn up and levied, the national court clude the imposition in a Member State of a took the provisional view that the provisions requirement whereby berthing services are and practices concerned 'may constitute a obligatory and shipping companies estab­ barrier to intra-Community trade in goods lished in another Member State are charged and services and induce undertakings vested tariffs which are fixed not by law but merely with those rights to abuse their dominant by administrative discretion in respect of the position to the detriment of trade between arrival or departure of their vessels in or Member States as a result of the costs borne from the first-mentioned Member State? by the undertakings engaged in transport operations between Member States'. Accord­ ingly, it decided to refer the following ques­ tions to the Court pursuant to Article 177 of the Treaty:

III— Observations Ferries of the ex parte or summary pro­ cedure under Article 633 of the Code in the main proceedings has resulted in the national court presenting a one-sided and artificial picture of the legal and factual situation to the Court. They contend that even the national-law requirements, in particular, that the amount claimed be certain, are not satis­ fied in the present case, since, whatever view 11. Written and oral observations have been might be taken of the fees charged, some ser­ submitted by Corsica Ferries, the mooring vices were nevertheless provided to Corsica groups, the Italian Republic and the Com­ Ferries. Accordingly, even an answer by the mission. Court favourable to Corsica Ferries would not simply enable the national court to order the repayment of the fees paid. The mooring groups, thus, contend that the utility of the reference for the proceedings before the national court is questionable, particularly as regards the Ministero dei Trasporti e della IV — The admissibility of the reference Navigazione, which, even if Corsica Ferries' substantive Community-law claims were upheld, could not, in their view, simply be ordered, on the basis of the case-law of the Court regarding Member State liability, to repay all of the fees levied on Corsica Fer­ 17 ries.

mation to enable useful answers to be given years later, in Birra Dreher, namely, that to the questions referred. For its part, Cor­ references may be made even in ex parte pro­ sica Ferries maintained at the hearing that ceedings. These decisions were made at a the outline contained in the order for refer­ time when the Court adopted a more liberal ence sufficiently describes the legal and fac­ and flexible attitude to references pursuant tual context of the dispute. to Article 177 of the Treaty. The jurisdiction to make references at the ex parte stage nev­ ertheless involves an issue of principle, though the Court has never suggested that its position should be changed. Beginning with Simmenthal, the Court accepted that 'the interests of the proper administration of justice' might require that a reference be made only 'after both sides have been 22 14. In the circumstances of the present case, heard'. However, the Court has always I agree with the Commission that it follows, declared that 'it is for the national court 23 in particular from the principle declared by alone to assess whether that is necessary'. the Court in paragraph 12 of its judgment in On the contrary, in paragraph 12 of its judg­ Corsica Ferries, that a reference made in ment in Corsica Ferries, which concerned a summary proceedings, such as those under reference made by the Tribunale di Genova Article 633 of the Code, is admissible. I in proceedings brought by Corsica Ferries endorse the view expressed by Advocate under Article 633 of the Code, the Court General Van Gerven in his Opinion in Cor- reaffirmed that Article 177: sica Ferries that 'the basic philosophy under­ 18 lying the preliminary rulings procedure' is, as pronounced consistently by the Court, that it constitutes 'an instrument for coop­ eration between the Court of Justice and the national courts, whereby the Court of Justice provides the national courts with the criteria for the interpretation of Community law which they need to dispose of disputes 19 which they are called upon to resolve'. '... does not make the reference to the Court subject to there having been an inter partes hearing in the proceedings in the course of which the national court refers the questions for a preliminary ruling, although it may be in the interests of the proper administration of justice that there has been such a hearing.'

This restatement leaves no room for doubt as have its first opportunity of presenting its to the principle of the jurisdiction to enter­ side of the case before this Court, giving rise tain references for preliminary rulings made to a real risk that it will raise both factual at the ex parte stage of national proceedings. and national-law issues that have not been raised in the national proceedings, and thus creating grave difficulties for the Court. In Union Laitière Normande, in 1979, the Court emphasised that 'the need to afford a helpful interpretation of Community law [made] it essential to define the legal context in which the interpretation requested should 25 be placed'. The Court recalled this dictum 16. It does not automatically follow, how­ two years later when, in Irish Creamery ever, that a reference made in the context of Milk Suppliers Association v Ireland, it was ex parte proceedings will always be admis­ expressly asked, by the High Court of Ire­ sible. The Court has, in response to particu­ land, to rule on the correctness of the exer­ lar problems presented by individual cases, cise of the discretion to refer questions of identified a number of situations where it 26 interpretation before examining the facts. does not consider that it has jurisdiction. Recalling its observation in Union Laitière More to the point of the present case, it has 27 Normande, it suggested that: in recent years, to quote from the Opinion of Advocate General Jacobs in Leur-Bloem, 'placed more emphasis on the need to give a ruling within the context of the factual situ­ ation of the case and has accordingly been more strict in demanding that national courts clearly specify the factual and legislative con­ 24 text in which a ruling is sought'.

18. However, it immediately went on to mere reiteration of the need for specification stress that: of the 'factual and legal context'; it took the further step of declaring that there was no need to answer the question referred. In the period of some five years since that decision, the Court has, not infrequently by order, ruled inadmissible a number of references 31 from national courts. In its order in Lan- chero, upon which Italy relies, the Court repeated its now well-known dictum that 'the need to arrive at an interpretation of '[T]hose considerations do not in any way Community law which will be of use to the restrict the discretion of the national court, national court requires that that court should which alone has a direct knowledge of the define the factual and legislative context of facts of the case and of the arguments of the the questions which it refers or at least parties, which will have to take responsibility explain the assumptions of fact on which for giving judgment in the case and which is those questions are based'. 32

therefore in the best position to appreciate at what stage in the proceedings it requires a preliminary ruling from the Court.'

19. The accepted point of departure for the stricter approach of the Court in demanding a full account of the factual and legal context, 20. In short, the admissibility, in principle, detected by Advocate General Lenz in Bos- of a particular reference does not mean that man, 28 is its decision in Telemarsica- the Court will always be in a position to bruzzo. 29 In that latter case the Court appar­ respond to the questions referred. Having ently accepted Advocate General Gulmann's regard to the underlying purpose of proposal for a 'slightly more restricted atti­ Article 177 , I would always emphasise, how­ tude'. 30 Thus, it did not content itself with a ever, that exceptional circumstances must exist before the Court should refuse to

22. Where, in particular, the observations submitted to the Court reveal the possibility that a reference made might contain an 21. The Court was prepared in Corsica Fer- incomplete, or even an incorrect, account of ries to accept that the 'statement of facts' the relevant provisions of national law, the comprised in the order for reference could Court is placed in a very difficult position, be supplemented by information contained since it is, in principle, bound by the national in 'the written and oral observations submit­ 38 35 court's account. Consequently, if that ted to [it]'. Advocate General Van Ger- 36 account is lacking in pertinent respects, the ven had, however, advised that, in light of Court may be led to give its answers to the the insufficiency of the description of the questions referred on a practically hypotheti­ national legal context and since an applica­ cal or academic basis. Yet the Court, quite tion under Article 633 of the Code had to rightly, has always refused to answer purely concern an amount which was certain, only 39 hypothetical questions. the questions pertaining to the alleged dis­ crimination in the tariffs applied at the Port of Genoa were admissible. The Court essen­ 37 tially followed his recommendation. In the

Articles 30 and 59 of the Treaty. This would V — Analysis appear to arise from the claim of the plaintiff in the main action to recover all of the fees paid by it to the mooring groups. The defen­ dants contend, to my mind not unreason­ ably, that, as they have provided services to A — The first question the plaintiff, they are entitled, on any view, to some payment and, accordingly, that the plaintiff's claim fails to satisfy the require­ ments of Article 633 of the Code. It seems, however, from the order for reference that the national court may, indeed, accede to the (i) Introduction plaintiff's claim if the basis of imposition of charges is found to be incompatible with Community law. The consequences of such a ruling, including its possible incompatibility with the requirements of Italian procedural 25. By its first question, the national court law, are a matter for the substantive and pro­ essentially wishes to know, particularly in cedural law of that Member State. the light of the judgment in Ligur Carni, whether it is compatible with Article 30 of the Treaty for Italian legislative or other rules to require shipping companies estab­ lished in other Member States, and desirous of berthing vessels at Italian ports, to use the services of local mooring undertakings. Although not expressly couched in alterna­ tive terms, there is a second aspect to the question; namely whether the combination of the local undertaking's monopoly with the requirement of 'paying to that undertak­ ing dues which may not be commensurate 24. I am, thus, of the opinion that all of the with the actual cost of the services provided' questions referred by the national court in ('versando a detta impressa corrispettiva the instant case are admissible and should be anche sproporzionati rispetto al costo effet­ answered by the Court, except, as indicated tivo dei servizi resi') would be compatible above, where I do not think that the infor­ with Article 30. mation provided in the order for reference, viewed in the light of the conflicting obser­ vations provided to the Court, is sufficient. I would also recommend that, in answering the questions referred, the Court draw atten­ tion in its judgment to the specific difficulties (ii) Observations presented by references made in inaudita altera parte or summary proceedings in the context of safeguarding the productiveness of the Article 177 procedure as an effective instrument for cooperation between the 26. The plaintiff submits that, as a result of Court of Justice and the national courts. the monopoly granted to the mooring

27. The mooring groups submit that it would undermine the distinction that ought 28. The Commission is also of the view that to exist between the field of application, on Article 30 is inapplicable. In its written the one hand, of Article 30 and, on the other, observations, it cites, inter alia, paragraphs of Article 59 if the former were regarded as 24 and 41 respectively of the judgments in capable of applying to national rules that are Peralta and Centro Servizi Spediporto and, in not intended to regulate trade in goods and particular, the Court's declaration that the that do not have any, other than wholly purpose of 'legislation which makes no dis­ uncertain, indirect or aleatory, effects on the tinction according to the origin of the goods free movement of goods. They refer to the transported' is not 'to regulate trade in goods judgments, and Opinions of Advocates Gen­ with other Member States and the restrictive eral Lenz and Léger respectively, in Peralta effects which it might have on the free move­ and Centro Servizi Spediporto v Spedizioni ment of goods are too uncertain and indirect Marittima del Golfo in support of their view that rules concerning the provision of trans­ port services cannot, merely because the object of the relevant transport service is 41 — See, respectively, Case C-379/92 Peralta [1994] ECR I-3453 goods, be regarded as falling within the and Case C-96/94 [1995] ECR I-2883 (hereinafter 'Centro Servizi Spediporto'). The mooring groups refer, in particu- lar, to paragraph 40 of the Opinion of Advocate General Léger in Centro Servizi Spediporto where he referred, with approbation, to Advocate General Lenz's statement at para- graph 51 of his Opinion in Peralta that the demarcation 40 — It could also be argued, although Corsica Ferries has not should be based on the principle that 'all situations in sought to do so in the present case, that they arc incompat- which the barrier to the movement of goods is merely the ible with Article 34 of the Treaty as equivalent to a quanti- reflection of a barrier to (cross-border) services' must be tative restriction on exports, since, presumably, it also car- regarded as being subject to the provisions of Article 59 of ried Italian exports on its car-ferries during the material the Treaty. period. 42 — Joined Cases C-267/91 and C-268/91 [1993] ECR I-6097.

29. I agree with the Commission and the mooring groups. The applicability of Article 30 of the Treaty to a national measure does not, of course, depend on the degree of 30. I think that the analogy made by Corsica its effects on trade. It is clear from the case- Ferries to the obligation affecting the trans­ law of the Court that no de minimis rule porters of fresh meat in Ligur Carni is mis­ 43 operates in respect of Article 30. Never­ conceived. Although the objective of the theless, the Court, both before and after its rules impugned in the instant case is, like in decision in Keck and Mithouard, has consis­ Ligur Carni, to reserve the provision of a tently required that rules that apply indi­ service to undertakings themselves involved stinctly to national and imported products in providing services, there the similarity must, if an impediment to trade for the pur­ ends. In Ligur Carni the scope of the appli­ poses of Article 30 is to be established, have cation of the impugned regional Italian rule some protective effect. This may be illus­ was specific: municipal transport of meat trated by the judgments in Peralta and Cen- from the local slaughterhouse to its final des­ tro Servizi Spediporto, for example, which tination was either to be entrusted to a local concerned rules affecting, respectively, mari­ transport undertaking or executed by the time and road-haulage transport operators transporter responsible for having brought but whose application was not linked to the the meat to that municipality (from either origin of the goods transported. The Court other parts of Italy or other Member States) took the view, notwithstanding the indirect on payment of 'a certain sum to the [local] 44 and consequential effects of such rules on the undertaking holding the concession'. The cost of transporting imported products, that Court took the view that this rule consti­ such rules could not be regarded, in prin­ tuted a measure having equivalent effect to a ciple, as falling within the scope of quantitative restriction, 'since its effect [was] Article 30. I think that the principles to make importation of goods from other declared in that case-law may be applied in Member States more burdensome and more 45 the present case. A general obligation to difficult ...'. In contrast, the scope of the impugned rules in the present case is general

31. The plaintiff maintains, in addition, that, 33. By its second question the national court since more imported than domestic goods wishes to know whether the exclusive con­ are arguably transported to Italy by mari­ cession given to the local mooring groups, time means of transport, excessive fees for combined with the claimed discretionary fix­ mooring services more gravely affect ing of the tariffs, constitutes an impermis­ imports. Although such effects could, in sible restriction on the freedom to provide theory, be sufficiently adverse for Article 30 46 maritime transport services. I do not think to apply, the national court has made no that the manner in which the tariffs are fixed findings in respect of the level of fees can, independently of the compatibility with charged by the mooring groups. Conse­ Article 59 of the Treaty of the grant of the exclusive concession regarding mooring ser­ vices, constitute a restriction on the freedom 46 — In Case 31/67 Stier v Hauptzollamt Hamburg-Ericus [1968] to provide services, although it may, of ECR 235, though admittedly in the context of a case con- cerned with internal taxation, the Court stated that the course, exacerbate the effects of any restric­ imposition of a charge "... of such an amount that the free movement of goods within the Common Market would be tion that is found to exist in the grant of impeded as far as those goods are concerned' would not be those concessions. Corsica Ferries, however, permitted ([1968] ECR 235, at p. 241). In Case C-47/88 Commission v Denmark [1990] ECR I-4509, the Court also refers to the possibility that the charging noted, with reference to Stier, that 'the only possibility of approaching an adverse effect of that kind on the free of excessive fees might constitute a breach by movement of goods' would be 'by reference to the general Italy of Article 90 in conjunction with rules contained in Article 30 et seq. of the Treaty'; see para- graph 13. Article 59. Since the national court has not

(i) The prima facie application of the free 35. Unlike in the earlier case of Corsica Fer- dom to provide services ries, the impugned rules in the instant case would not appear to contain any overt or covert discrimination contrary to Article 59 of the Treaty and Article 9 of the 1986 Regu lation. On the one hand, at the Port of Genoa the obligation to use the mooring ser vices provided by the Genoan mooring group applies de facto to all shipping compa

51 viding services in Italy, comes clearly within ing groups services. Although it is, thus, the scope ratione personae of Article 59 of possible that the rules applicable at the Port the Treaty and Article 1 of the 1986 Regu of La Spezia might indirectly be discrimina 50 lation. tory, I do not think that Corsica Ferries could rely on any such eventual discrimi nation. An undertaking such as the plaintiff which operates large modern car-ferries, can 47 — The plaintiff, in its written observations on the second question, also raised the possibility that the imposition of not be compared with a hypothetical group excessive charges attributable to Italian public authorities could constitute a breach of Articles 9 ana 12 of the Treaty. of competing national transport undertak Since it is for the national court alone to determine what ings operating vessels whose gross tonnage j questions ought to be referred to the Court, the plaintiff's attempt to invoke Articles 9 and 12 of the Treaty is mani- does not exceed 500. To my mind, in the festly inadmissible: see, for example, Case 44/65 Hessische Knappschaft v Singer [1965] ECR 965, at p. 970, and Joined absence of relevant findings of fact regarding Cases C-134/91 and C-135/91 Kerafina v Greek State and the plaintiff's Italian competitors by the Others [1992] ECR I-5699, paragraph 16, as well as para- graph 13 of the Opinion of 2 October 1997 of Advocate national court, such a comparison would not General Cosmas in Case C-309/96 Annibaldi v Sindaco del Commune di Guidonia et Presidente Regione Lazio, not yet answer the question that has been referred in published in the ECR. 48 — Regulation No 4055/86, loc. cit., footnote 4 above. 49 — See, in particular, paragraph 26. 50 — Under Article 1(4), the concept of 'maritime transport ser- vices' shall be considered to comprise, inter alia, 'intra- 51 — In its oral observations, Corsica Ferries maintained, with- Community shipping services'; to wit, 'the carriage of pas- out being contradicted, that all vessels benefiting from the sengers or goods by sea between any port of a Member exemption are operated by Italian nationals or undertak-

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CORSICA FERRIES FRANCE v GRUPPO ANTICHI ORMEGGIATORI DEL PORTO DI GENOVA AND OTHERS

the present case. The 500-tonne threshold character of the presentation made to the cannot, without more, be compared with the national court, which is clearly reflected in fishery-protection measures at issue in Com- its order for reference, is most striking. mission v Ireland, which applied to 'scarcely According to Corsica Ferries, the mooring 52 any boats in the Irish fishing fleet'. The operation consists essentially of the tying proper comparator for Corsica Ferries must and untying of a vessel using appropriate be Italian transport undertakings using ves­ lines and cables (see paragraph 7 above) and sels of analogous size to its car-ferries. Since amounts to no more than receiving ropes such Italian operators would be subject to from the ship and fixing them to mooring the same tariffs as the plaintiff, no question posts on the dock and vice versa. of direct or indirect discrimination arises.

38. However, an entirely different picture emerges from the observations of the moor­ (iii) The existence of a restriction on the ing groups. They strongly contest the com­ freedom to provide services monplace description advanced by the plain­ tiff. They contend that the service constitutes one of the three technical nautical services provided at ports which are fundamental for maintaining safety in port waters and, fur­ thermore, that it possesses all of the charac­ 36. Next, it is necessary to consider whether teristics of a service provided in the public 53 the exclusive concessions may, none the less, interest. They refer, in particular, to the be considered to constitute a non­ following aspects: discriminatory restriction upon the freedom of transport undertakings like the plaintiff to provide maritime transport services to and from Italian ports.

particular, when the loading and provide other assistance, in particular when unloading of the passengers and goods dangerous weather conditions occur at the transport thereon is in progress; port.

39. In the light of the view I shall presently (iii) intervening whenever it is necessary to take regarding the issue of a restriction on modiŕy or reinforce the mooring of the the provision of services, it is unnecessary to vessel, particularly whenever changeable express a view about the competing descrip­ weather conditions might necessitate tions. Nor would it be appropriate. That moving it to another berth; remains a matter for the national court. Obviously, protection against the risks to human life and health, as well as the environ­ ment, posed by reckless or negligent moor­ ing and unmooring of ships, particularly at large and busy ports like Genoa and La Spe­ zia, constitutes a legitimate policy goal for Member States to pursue in the absence of appropriate harmonising Community mea­ (iv) ensuring before the vessel casts off that 54 sures. It is, of course, for the national its proposed path out of the port is clear court to determine if that objective is and, where there are obstacles, to achieved, or better achieved, by the grant of remove them before the anchor is lifted; exclusive mooring-services concessions.

(b) Observations on the existence of a (v) to cooperate fully with the crew of the restriction vessel during its exit from the port and until it reaches the open sea.

40. The plaintiff contends essentially that, as a French company providing maritime trans- They point out that these services must be provided on a 24-hour basis, 365 days per year and under the supervision of the appro­ 54 — The first step towards the development of a Community- priate maritime authorities, particularly the wide policy was taken by the Commission with the publi­ harbourmaster. In this respect, the harbour­ cation, on 24 February 1993, of a communication entitled 'Towards a Common Maritime Security Policy'; see master may call upon the mooring groups to COM(93) 66 final.

42. The Court has consistently held that (c) Analysis 'Article 59 of the Treaty requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it applies without distinc­ tion to nationals providing services and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of a provider of services established 41. It must first be noted that the supposed in another Member State where he lawfully 57 restriction in the present case does not relate provides similar services'. It is difficult to to the provision of mooring services. Corsica formulate an objective definition of the sorts Ferries, while asserting the right to use its of national measures that are capable of con­ own trained crews and the modern equip­ stituting such 'restrictions'. In its recent judgment in Reisebüro Broede v Sanker, they were formulated as those which, though

55 — Case C-111/94 Job Centre [1995] ECR I-3361, para- graph 27 of the Opinion. 56 — In its view, the increased costs which may result from the impugned rules do not affect the costs of services provided 57 — See, for example, Case C-76/90 Säger [1991] ECR I-4221, by non-Italian undertakings more adversely than those of paragraph 12 and Case C-398/95 SETTG [1997] domestic maritime transport undertakings. ECR I-3091, paragraph 16.

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OPINION OF MR FENNELLY — CASE C-266/96

applicable equally to national and non- involved in SETTG, where a Greek law national providers of services, were, none the imposed a mandatory legal form of employ­ less, '... liable to prohibit, impede or render ment relationship on non-national tour less advantageous the activities of a provider guides desirous of occasionally providing of a service established in another Member services on a self-employed basis in Greece, 60 State where he lawfully provides similar ser­ was unmistakable. In the words employed 58 vices'. by the Court in Alpine Investments, such rules 'directly affect [...] access to the market in services in ... other Member States and [are] thus capable of hindering intra- 61 Community trade in services'.

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CORSICA FERRIES FRANCE v GRUPPO ANTICHI ORMEGGIATORI DEL PORTO DI GENOVA AND OTHERS

45. In the light of this conclusion, I do not public authorities 'in laying down the tariffs', find it necessary to consider whether the as well as the central complaint that those alleged restriction can be justified. tariffs result from an anti-competitive agree­ ment between the various providers of mooring services in Italy, I must begin by summarising the diametrically opposing accounts of the tariff-determination process furnished effectively only in the observations C — The third question submitted to the Court.

(i) Introduction

(ii) The rules governing the formulation of mooring tariffs

I - 3971

OPINION OF MR FENNELLY — CASE C-266/96

requested the Ministro della Marina Mercan­ 1989 Law') lays down a number of provi­ tile (Minister for the Merchant Navy) to sions in respect of maritime transport and adopt 'without delay the measures necessary concessions. The mooring groups contend to ensure the application of the agreement'. that, under Article 9 of the 1989 Law, an On 15 May 1991, the Minister replied to the objective 'cost-plus' system of tariff- effect that the determination of the tariffs determination was established; namely one was a matter for agreement between the pro­ whereby tariffs were determined essentially 64 viders of mooring services. Consequently, in accordance with the gross tonnage of the Corsica Ferries submits that the Italian vessel, with discounts being permitted for authorities effectively divested themselves, at frequent users of port facilities, such as car- least during the material period, of the pow­ ferry operators like Corsica Ferries. The pur­ ers which they possessed under Article 212 pose of the 'cost-plus' system is to allocate of the national regulation and confined the costs involved in providing a universal themselves to approving and rendering com­ mooring service on a proportional basis 66 pulsory tariffs drawn up pursuant to a pri­ among the various users of the port. The vate agreement. principles underlying this system were, dur­ ing the material period, set out in various 67 ministerial circulars. It would appear that Decree No 1453 of 20 October 1994 of the CAP of Genoa and Order No 231 of 27 Sep­ tember 1994 of the Head of the Maritime District of La Spezia conform with the pro­ visions set out in the circulars and, accord­ ingly, provide for a bracket-rate system of 48. The mooring groups, Italy and the Com­ tariffs. 68

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CORSICA FERRIES FRANCE v GRUPPO ANTICHI ORMEGGIATORI DEL PORTO DI GENOVA AND OTHERS

I - 3973

OPINION OF MR FENNELLY — CASE C-266/96

ties. In their view, the joint activities of the providers of mooring services are confined to participating in essentially a transparent and objective administrative tariff-fixing pro cess which is carried out under the overall supervision of the relevant minister. It is, of course, for the national court to make the final findings as to whether, for the purposes 52. The national court has made a number of of Article 85 of the Treaty, there is an anti relevant findings of fact in its order for refer competitive agreement between undertak

sible for reinforcing on a nationwide basis the effects of local anti-competitive agree 72 — As the national court has found expressly that both the Genoan and La Spezia mooring groups arc undertakings for ments, I do not think that the potential effect the purposes of Article 90(1) of the Treaty, I think that they of such action could be described as being de should also be regarded as undertakings for the purposes of Articles 85 and 86 of the Treaty since, though Article 90 minimis merely because the extra cost for refers to 'undertakings to which the Member States grant special or exclusive rights', the underlying notion is no dif- each individual maritime transport undertak ferent from that used in Articles 85 and 86.

Although it is graph 3 above) would hardly appear to be exiguous. alleged in the instant case that the mooring service provided 71 — See, for example, Case 56/65 Société Technique Minière v by the mooring groups is one provided in the general eco- Maschinenbau Ulm [1966] ECR 235, at p. 249, and, most nomic interest, I do not think that its supposed public- recently, Case C-55/96 Job Centre Coop [1997] service objective suffices to denude it of its inherent com- ECR I-7119, paragraph 36 (hereinafter 'Job Centre II'). mercial nature.

54. Finally, as regards the possible applica­ tion of Article 86, the national court has found that the grant to the mooring groups (b) Article 85 of their exclusive rights has had the effect of placing each of them in a dominant position on a substantial part of the common market. In this respect, I think that it is sufficient to note that, in Porto di Genova and Corsica Ferries, the Court has already held, in respect of statutory monopolies concerning, respec­ 55. The principles governing the potential tively, dock work and the provision of pilot­ responsibility of Member States for breaches age services at the Port of Genoa, that, 'hav­ of Article 85 of the Treaty are now well ing regard in particular to the volume of established. The Court has most recently confirmed in Sodemare and Others v 75 Regione Lombardia that it is 'settled case- 73 — The third question referred in this case is concerned with law that Articles 85 and 86, read in conjunc­ the responsibility of Italy for possible anti-competitive tion with Article 5 of the Treaty, require activities and does not, therefore, raise the potential concur- rent responsibility of the mooring groups themselves for Member States to refrain from introducing such activities, if they were still engaged in by such under- takings on their own initiative. Such liability would, of or maintaining in force measures, even of a course, not arise if the mooring groups were effectively legislative or regulatory nature, which may obliged by the Italian rules to apply anti-competitive tariffs rendered obligatory by the relevant Italian maritime render ineffective the competition rules authorities: see, for example, the recent decision in Joined 76 Cases C-359/95 P and C-379/95 P Commission and France applicable to undertakings'. Essentially, v Ladbroke Raring [1997] ECR I-6265, where (at para- graph 33) the Court held that 'if anti-competitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 85 and 86 do not apply' (emphasis added); as well as the 74 — In my Opinion of 9 October 1997 in Case C-163/96 Crimi- decision of the Court of First Instance in Case T-387/94 nal Proceedings v Raso and Others, I expressed the view Asia Motor France and Others v Commission [1996] (see paragraph 55) that a monopoly in respect of the provi- ECR II-961, paragraphs 60 and 61. It is noteworthy that, in sion of temporary labour at the Port of La Spezia was his Opinion of 18 December 1997, Advocate General capable of constituting, as the national court had stated in Tesauro has recommended that the Court reject the appeal its reference in that case, a dominant position on a substan- brought by one of the applicants (Somaco) in Asia Motor tial part of the common market. France and Others v Commission; see Case C-401/96 P 75 — Case C-70/95 [1997] ECR I-3395. Somaco v Commission, not yet published in the ECR. 76 — Ibid., paragraph 41.

there are two broadly defined ways in which circulars — to which, it must be stressed, it Member States may infringe their obligations was not referred by the plaintiff in its appli­ under Article 85 in conjunction with cation —, I am not satisfied, on the infor­ Article 5. First, they may require or favour mation available to the Court, that, in the adoption of anti-competitive practices respect of the tariffs applied at its ports for involving two or more undertakings or asso­ the provision of mooring services, Italy, ciations of undertakings, or reinforce the through its decentralised port or maritime effects of such practices. Secondly, they may authorities, has committed any infringement deprive their own rules of their legislative of Article 85, read in conjunction with character by delegating public decision­ Article 5, of the Treaty. If this conclusion making power to private economic opera­ appears rather lacklustre, I can only revert to tors. the leitmotif of this Opinion: the absence of a satisfactory factual and legal matrix for a helpful decision in the case. The plaintiff has chosen to raise serious issues regarding alleged anti-competitive agreements and the possible existence and abuse of a dominant position within the constraints of a national procedure which does not admit of the opposing party being heard or of considered judicial determination of central issues of law and fact. When pressed at the hearing to jus­ tify this choice, counsel for the plaintiff pleaded the delays inherent in the adversarial procedure in Italy, an argument which 56. In the present case, it is common ground scarcely coincides with fundamental legal that the impugned tariffs were, at least for­ principles regarding fairness of procedures. mally, adopted by the relevant maritime To be more precise, Advocate General Gul- authorities at the Ports of Genoa and La mann, in his Opinion in Telemarsicabruzzo, Spezia. The core contention of the plaintiff is placed particular stress on the need for find­ that those authorities merely rubber-stamp ings of fact in competition cases. In this case, 77 78 tariff brackets drawn up collusively either by unlike in cases such as Meng, Reiff, and 79 the members of ANGOPI , or by that asso­ Dip and Others, those criteria are missing. ciation in collusion with representatives, or representative associations, of other port users. I have already referred to the absence of consensus regarding this contention. The Court has, in particular, been referred to various ministerial circulars which, whatever their legal value in Italian public law, must, at the very least, influence port authorities when fixing mooring tariffs. That the deci­ sions of such authorities may, despite those circulars, still approve automatically or largely endorse tariffs predetermined by anti­ 77 — Case C-2/91 [1993] ECR I-5751. competitive agreements is, of course, pos­ 78 — Case C-185/91 [1993] ECR I-5801. sible. However, in the absence of any find­ 79 — Joined Cases C-140/94, C-141/94 and C-142/94 DIP and Others v Comune di Bassano di Grappa and Comune di ings by the national court regarding those Chioggia [1995] ECR I-3257.

(c) Article 86 58. Not surprisingly, the mooring groups, supported by Italy, deny the existence of any abuse. In so far as the charging of tariffs exceeding the actual cost of the service pro­ vided is concerned, they rely upon Article 90(2) of the Treaty and contend that such tariffs are necessary to permit mooring enterprises to carry out effectively the task of providing a universal service. The differences in tariffs charged from port to port reflect the influence of local circumstances that the tariff-calculation formula takes into account, by way of corrective factors, when calculat­ ing the tariffs. At the hearing, it was asserted that Corsica Ferries has suffered no abuse by the mooring groups of their dominant pos­ 57. According to the plaintiff, Italy is ition, since it benefits from one of the largest responsible for the abuse by the mooring discounts. The Commission, though groups of their dominant positions at the expressly reserving its position at the hearing Ports of Genoa and La Spezia. Relying in regarding the practice of offering discounts particular on Porto di Genova, it says that on the published tariffs, submits that the par­ there are two aspects to the alleged abuse. ticipation of port users in the tariff-fixing First, the use of unnecessary services forced process would seem to guarantee that the upon Corsica Ferries and, secondly, the tar­ tariffs fixed are not unreasonable. However, iffs charged for those unwanted services bear it contends that, in the final instance, it is for no relation to the cost of their provision, as the national court to determine whether they appears from the fact that they vary unjusti­ are excessive, having regard not only to the fiably from port to port. As regards cost, the immediate costs of providing mooring ser­ plaintiff contends that not only are the tariffs vices to undertakings like Corsica Ferries but based on the global costs of providing a per­ also to the costs of maintaining the universal manent mooring service, but that they also service. include various other 'supplementary' com­ ponents, such as a 1% levy for technical assistance provided by ANGOPI to indi­ vidual mooring groups and a 1% levy for a form of 'insurance' fund. It is also alleged that the tariffs are not applied on a wholly objective basis because of the effects of a supposedly non-transparent discount policy. Corsica Ferries asserts that the mooring 59. It is well established that the mere cre­ groups are led inevitably to commit these ation by a Member State of a dominant pos­ abuses as a consequence of the right granted ition through the grant of an exclusive right to them by the impugned Italian rules. Fur­ cannot, in itself, be regarded as incompatible thermore, it is alleged that they are not cov­ 80 with Article 86 of the Treaty, and that ered by the derogation contained in Article 90(2) of the Treaty, since a mooring service cannot be regarded as a 'service of 80 — See, for example, the recent decision in Job Centre II, loc. general economic interest'. cit., footnote 71 above, paragraph 31.

61. It is claimed in the present case that the mathematical formula for calculation of the tariffs includes an element over and above costs and profit margin that is intended to cover the cost of providing mooring services on a universal basis. In my opinion, the com­ patibility with Article 86 of the Treaty of the inclusion of that incidental element depends on whether the service at issue may be regarded as constituting, for the purposes of Article 90(2), a service 'of general economic interest'. The Court has consistendy held that, as 'a provision which permits, in certain circumstances, derogation from the rules of the Treaty, there must be a strict definition of 60. Since Community law does not cur­ those undertakings which can take advantage rently preclude Italy granting exclusive 83 of it'. In Porto di Genova, the Court held rights in respect of the provision of mooring that the provision of dock-work services was services at its ports, the alleged abuse at issue not of a kind that was necessarily of a gen­ essentially comprises the charging of tariffs eral economic interest because it did not that exceeded the costs of providing the ser­ vice, plus a reasonable profit margin. For my own part, I find it difficult to see how any mere excess in the price of a service, estab­ 82 — In Case 177/78 Pigs and Bacon Commission v McCarren [1979] ECR 2161, the Court held that, where a levy has lished to the satisfaction of the national been paid in contravention of Community law, although a right to reimbursement will in principle arise, 'it is for the court, could result, in the context of Corsica national court to assess, according to its national law, in Ferries' claim via Article 633 of the Code, in each individual case, whether and to what extent the levy paid may be recovered ...'; see paragraph 25, as well as Case the refund of the full amount of the fees 222/82 Apple and Pear Development Council v Lewis [1983] ECR 4083, where, at paragraph 41 of its judgment, paid. However, consistently with the pos­ the Court held that it was for 'the national court to deter- mine, according to its national law, whether and to what ition I have already adopted in section IV extent [an] entitlement to a refund is offset by the advan- tages accruing directly to the person concerned as a result of the activities [giving rise to the underlying charge]'. 83 — See Case 127/73 BRT v SABAM and NV Fonior [1974] ECR 313, paragraph 19 and Case C-242/95 GT-Link v DE 81 — Ibid. Danske Statsbaner [1997] ECR I-4449, paragraph 50.

(1) National rules or administrative practices in one Member State which debar indistinctly both domestic shipping companies and shipping companies estab­ lished in other Member States from berthing or unmooring their vessels on entry and departure from ports in the first-mentioned State, unless they use the mooring services provided by undertakings enjoying statutory exclusive rights in respect of the provision of such services, and which require such

84 — Loc. cit., see paragraph 27. Indeed, Advocate General Van 86 — Loc. cit., paragraph 22. Gerven had pointed out that 'if such operations fall within the concept of services of general interest, then that concept can cover practically all economic activities'; see para- graph 27 of his Opinion. 85 — Loc. cit., see, in particular, paragraph 52.

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OPINION OF MR FENNELLY — CASE C-266/96

shipping companies to pay to those undertakings dues which may not be com­ mensurate with the actual cost of the services provided, are not incompatible with Article 30 of the Treaty;

(2) Council Regulation (EEC) No 4055/86 of 22 December 1986 in conjunction with Article 59 of the Treaty does not preclude a Member State from imposing a requirement on all shipping companies, regardless of their Member State of establishment, whose ships call at its ports to use mooring services provided by holders of exclusive concessions at those ports;